Burke v. City of New York

Callahan, J.

(dissenting). Both the City of New York and the trustees in reorganization of a street railway have been held liable in damages to a pedestrian, who was injured when her foot caught in a hole in a city street alongside of the rail of a former street railway. The hole had existed several months.

The sole question involved is whether the trustees are required to indemnify the city in view of the statutory duty cast on the railway by section 178 of the Railroad Law or under a written contract between these parties, and because any negligence of the city was merely passive.

The trial court found that the city and the railway were liable as active tort-feasors. It expressed the view that if section 178 was the sole basis of liability, there might be room for argument that the city could not recover over against the codefendant trustees. It found, however, that liability for indemnification existed by reason of a contract entered into between the parties on November 9, 1940, when buses were substituted for the railway.

This contract has been submitted to us, and we find two paragraphs relating to the duty of the railway to repair (art. XIII, §§ 2, 8). We construe these provisions to require the railway to repair so long as the tracks remain in the street to the same extent that it was obligated under section 178 of the Railroad Law. Therefore, this contract merely provided that until the tracks were removed or the street repaved, the railway was to remain as fully liable as it had been under the statute and prior to the making of the contract.

There is no question that after the enactment of section 178 both the railway and the city remained liable to users of the highway for accidents due to lack of repair within the track area (Binninger v. City of New York, 177 N. Y. 199; Schuster v. Forty-Second St., Manhattanville S St. Nicholas Ave. Ry. Co., 192 N. Y. 403; Hayes v. Brooklyn Heights R. R. Co., 200 N. Y. 183; Wilson v. City of Watertown, 3 Hun 508).

The question here is whether both defendants were liable as co-tort-feasors in pari delicto as to an accident due to defective pavements, or whether the primary and paramount duty to repair was on the railway and the duty of the city only secondary and any negligence on its part merely passive, so that indemnification may be had by the city.

We reiterate that the proximate cause of the accident was a defect in the pavement due to lack of repair of said pavement, and not solely the presence of the tracks in the street. Under the common law, there was no duty on the railway’s part to repair the pavement in the area of its tracks. Whatever duty exists in that respect is imposed by section 178.

Before passage of the statute, cities at times imposed a covenant in franchises requiring the railway to repair and keep the track area in safe condition (City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475). Here we have no contract, only an obligation to carry out the statutory duty, and, therefore, no covenant by the railway to discharge the city’s duty to the public such as existed in the case cited. Hence, the sole issue in the case is the relative burden of the parties since the adoption of the statute.

The difficulty in defining the nature of the neglect of the two defendants in this case is that their duties arise from different sources, the city from the common-law obligation that municipalities are required to exercise due diligence in maintaining the safe condition of their streets, the railway by reason of the command of section 178 that it keep the zone area within and alongside its tracks in permanent repair.

Since the adoption of section 178, the duty of both defendants to the traveling public has been said to be the same (Hayes v. Brooklyn Heights R. R. Co., 200 N. Y. 183, 186, supra). Undoubtedly, the measure of that duty is reasonable care on the part of both defendants. I agree that section 178 was adopted not only for the protection of the traveling public, but also for the pecuniary advantage of the municipalities in securing for them payment by the railways of at least part of the paving costs. The obligation placed on railways to keep their track areas in permanent repair has been termed a command (Conway v. City of Rochester, 157 N. Y. 33). The statute imposes a continuing duty on the railway of an original nature, so that it may not delay or neglect to make repairs until required to do so by the city, and will be liable to an injured person even though the city made no request (Schuster v. Forty-Second St., Manhattanville & St. Nicholas Ave. Ry. Co., 192 N. Y. 403, supra).

I believe, however, despite the duty to repair placed on the railway by the statute, that as to an accident of the present nature, not due solely to the presence of the tracks in the street, but due to failure to repair the pavement in the track area, the city had a concurrent or parallel duty of vigilant inspection to detect any lack of repair, and that a breach of this duty was active and not merely passive negligence.

The statute never intended to eliminate the municipality’s duty to the public in the exercise of vigilance. Accordingly, the city could not disregard the duty of reasonable care on the assumption that the railway would perform its statutory obligation to repair. It could not remain passive and discharge its obligation to the traveling public, because it continued to have the duty of inspection and the obligation to demand repair by the railroad, and to proceed with repairs itself when the railway failed. To know when such steps were required, it had to be vigilant in inspecting its roadways, even in track areas.

We need not determine whether indemnity would be recoverable if the city had demanded action by the railway. In the instant case it appears that the city as well as the railway did nothing, so we may assume a failure by the city to inspect, which, in fact, the trial court found. This, in my opinion, was active negligence and made the city a co-tort-feasor.

It seems to me that the case is unlike City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475, supra), where the city had obtained a covenant from the railway, as a condition of its franchise, that it would keep the track areas in safe condition. While the obligation to indemnify may exist without express covenant, the existence of such a covenant in relieving one party of liability may be a material factor. A covenant to indemnify against one’s own negligence must be clearly expressed (Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422, 424, and cases cited).

Where the law casts an obligation on more than one person to perform a duty and a covenantor agrees that he will discharge the entire duty of the covenantee, the law is not prone to find the covenantee in pari delicto with the covenantor, though they both remain liable to the public (Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, affd. 298 N. Y. 686).

In the present instance, the trial court found both defendants guilty of active negligence. It specifically found that the city failed to inspect. The findings appear to be justified on the evidence, and the defendants being joint tort-feasors, they have the right of contribution (Civ. Prac. Act, § 211-a), but not indemnity.

Section 178 and its predecessor section have been on the statute books since 1884. It seems strange that no reported decision in all the intervening years indicates that the law affords a municipality the right to indemnity in a case like the present. None of the authorities cited in the majority opinion seem controlling.

Cases like Trustees of Canandaigua v. Foster (156 N. Y. 354) are inapplicable. They involve situations where abutting landowners place grates or vault covers in the highway for their convenience and permit them to fall into disrepair to the injury of the public. Here the damage was not created by the presence of a railway track in dangerous condition. It was due to lack of repair of the pavement. There would be no duty on'the part of the railway to maintain street pavement in repair even in the track area, except for the provisions of section 178.

Nor do I believe that it is essential to the trustees to hold that the principle of City of Rochester v. Campbell (123 N. Y. 405) is applicable here. Though the ordinance involved there and the statute found here have many common or similar provisions, the situation of an abutting property owner (who is comma.ndp.fl to repair a sidewalk with no particular advantage in its use over the public generally) and a railway (which uses a city street for its private profit) are distinguishable.

The Schuster case (supra) relied on most strongly by the majority holds only that the obligation of the railway to the traveler is an original one and arises even in the absence of any request for repairs by the municipality. That ruling is readily understandable because of the language of section 178 requiring the railway to keep the track zones in permanent repair. But there is nothing inconsistent in holding the railway originally liable and holding the city for breach of a concurrent duty to exercise vigilance. No question of the city’s liability was involved in the Schuster case, and no question presented as to the right of indemnity.

Much that is said in the Schuster opinion confining certain provisions of the statute to repaving situations, and comparing the statutory provisions to those found in the covenant in the City of Brooklyn v. Brooklyn City R. R. Co. case (supra), has to do with the portions of section 178 defining the action to be taken by the city after demand for repair. These statements have no relevancy to an accident of the present nature based on failure to detect or remedy a dangerous condition.

There is, however, a statement in the Schuster opinion that has some relevancy. It is to the effect that the words in the statute — ‘ ‘ whenever required by them to do so ” — relate solely to supervision by the city of repairs being made by the railway. Were it not for this limited construction, one might well argue that these words indicated that the statute explicitly expressed the need for vigilance by the city to inspect and to require repairs by the railway, when necessary.

But whether this language is capable of such construction is academic, insofar as the question of indemnity is concerned, because whether the duties of the city as to vigilance and inspection are expressed in the statute or not, there can be little doubt that a common-law duty to exercise such vigilance remained on the city even after the adoption of section 178. Otherwise, there would be no basis for holding the city, and, concededly, it is liable to the public. It is liable because the care of its streets is a nondelegable duty. Section 178 recognizes this duty as continuing.

The failure of the city to exercise reasonable care shown by its omission to take any steps in the premises is, in my opinion, active negligence, which deprives it of any right to indemnity.

The judgment insofar as appealed from should be reversed, with costs, and judgment rendered in favor of the defendant trustees dismissing, the cross complaint.

Peck, P. J., and Cohn, J., concur with Botein, J.; Callahan, J., dissents in opinion in which Bastow, J., concurs.

Judgment, so far as appealed from, affirmed, with costs to the respondent, the City of New York.